Threats To Pharma’s Intellectual Property Risk EU’s Long Term Prosperity

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“Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” Basquiat

The foundations of a free society are built upon property rights. These rights are held by the individual, in themselves and in their property, and from them derives our conceptions and enjoyment of liberty.

One is not free unless one can speak freely, think freely, and dispose of one’s own property in any way one sees fit. The earliest written evidence of such thinking in the English-speaking world, and the liberal political order that flowed from it, appears in a Charter granting property rights to the Abbey of Reculver. The abbey sits on the northern coast of Kent, and in 679 it was granted property rights on its own demesne (today the venerable old Abbey, like the rights it once held, slides gracefully, and slowly, into the sea). 

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These rights rested upon the law of King Æthelberht, from the first years of that century. Studies suggest that the laws defined in Æthelberht’s code, on property, and in the person, were themselves, as suggested by Basquiat, a codification upon pre-existing Common Law. It is thought that they were codified at the time, as the Kingdom of Kent wished to differentiate itself from other Kingdoms as somewhere civilised, dreaming of shrouded memories of a Roman Empire that had departed centuries before.

Our very concept of ourselves as a civilised society rests upon law, property rights, including intellectual property rights and the simple idea that those rights are defenceable, against our peers, but most importantly, against the state.

These are truths that are, in the immortal phrase, “self-evident” and “unalienable”, the skein that threads through the English speaking, liberal, world. 

For politicians to even think of overturning them, and worse still to voice those thoughts, outside wartime is, or should be, an anathema. That some European Union politicians are doing so in relation to the Vaccine crisis should alarm us all.

Over the last week or so there have been a series of comments, by those that should know better, that suggests that the EU is no longer a safe place for innovation and intellectual property. The Commission itself has hinted that under Article 122 of the Treaty, it could seize patents or institute “compulsory licensing”. The phraseology is deliberately opaque, but the threat is there. “The Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products”.

These Commission whispers have been supported by no less a figure than the German Treasury Minister, Peter Altmaier. His comments on German TV, reported by Politico, suggested strongly that if the Pharma companies did not do as they were told he “would be willing to talk about coercive measures”. 

These comments come at a time when former Greek PM, Tsipras, is talking about a common European “Patents pool” and the Italian Parliament has called for an overturning of the WTO TRIPS (intellectual Property) agreement, in favour of a waiver of property rights in the pharmaceutical sector.

The WTO is meeting today (4/2/21) to discuss a formal proposal from India and South Africa to apply such a waiver. Though unlikely to be successful at this time, cracks appearing at the heart of the European decision-making process over IP, suggest that, as ever, the state, in all its multifarious forms, cannot but see a crisis as an opportunity to garner more power to itself. 

If this is indeed the long-term outcome of the European Commission’s vaccine policy failure, the economic disruption caused by the delayed inoculation roll out, that is, leaving economies in lockdown far longer than they should be, will be as dust.

Currently the EU is falling behind other major economies in R&D expenditure, according to the most recent figures from the OECD it fell behind China in 2012 and the gap is widening between it and the rest of the world. Remove the UK from its statistics, as Brexit does, and things look even more worrying for the EU. The UK itself is far below the OECD average of 2.4% GDP but is rising.

However, threats to Intellectual Property, and a flaccid approach to protecting the interests of companies who invest billions in R&D, means that the global, the innovative private sector will think long and hard before investing in the EU. These threats are made all the more real in the light of the cavalier attitude to IP theft from China.

The knock-on effects for the continental economies are stark. Already the EU is seeing its share of global trade shrink year on year. With an aging population and an existential threat to further inward investment caused by the EU’s failures over its vaccine policy, there is a significant long-term threat to its prosperity. 

Sadly, the statist and acquisitive instincts of continental politicians is something that the EU was supposed to cure, rather than aid. But in a crisis, it does not seem to be able to help itself. 

But the inevitable threats of the destruction of liberty, and the property intractably entwined with liberty have been known for a long time. After all, it was not yesterday when Franklin wrote the definitive commentary on the subject. “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety”.   

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